State v. Rhoiney

Summary

The Kansas Supreme Court affirmed Andre Clark Rhoiney Jr.'s convictions for felony murder, criminal discharge of a firearm at an occupied vehicle, and aggravated assault. The court declined to review an unpreserved identical-offense sentencing claim and found no reversible error concerning the felony-murder mental-state instruction, prosecutorial statements, lesser included offense instructions, or cumulative error. The opinion was delivered per curiam on December 30, 2021.

Holdings

1. The court declined to review Rhoiney's unpreserved due process challenge to the felony-murder mental-state instruction because he did not establish that a preservation exception applied, and the court was not required to review the claim even if an exception might apply.
2. The prosecutor committed error during the first trial by appealing to the passions of the community, but the district court's prompt admonition directing the jury to disregard the statement cured the error.
3. The prosecutor's comments concerning Rhoiney's false identification, concealed pistol, burned SUV, and flight were fair commentary on the evidence and did not constitute prosecutorial error.
4. The prosecutor's comments that the State need not prove intent or motive and that the shooting could have been accidental were fair commentary on the evidence and a proper legal explanation of the felony-murder elements.
5. Even assuming the district court should have instructed the first-trial jury on discharge of a firearm from a roadway, any instructional error was harmless and did not warrant reversal.
6. The district court did not err by failing to give a lesser included offense instruction at the second trial because felony murder has no lesser included offenses.
7. K.S.A. 2020 Supp. 21-6820(e)(3) does not require an appellate court to review an identical-offense sentencing argument for the first time on appeal, and the court declined to exercise its discretion to review Rhoiney's unpreserved claim.
8. The cumulative effect of the errors and assumed errors did not substantially prejudice Rhoiney or deny him a fair trial.

Questions Presented

1. Whether the Kansas Supreme Court should review for the first time on appeal Rhoiney's due process challenge to a felony-murder mental-state instruction.
2. Whether statements by the prosecutor in the two trials constituted prosecutorial error that deprived Rhoiney of a fair trial.
3. Whether the district court plainly erred by failing to instruct the first-trial jury on discharge of a firearm from a roadway as a lesser included offense, and whether lesser included offense instructions were required at the second felony-murder trial.
4. Whether Rhoiney was entitled to sentencing for reckless voluntary manslaughter under the identical-offense sentencing doctrine.
5. Whether cumulative error denied Rhoiney a fair trial.

Disposition

affirmed